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TMI Blog2012 (3) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... bove addition, we do not find any infirmity or illegality in the order of the ld. CIT(A) in deleting the addition. Addition on account of household expenses - Held that:- No merit in this ground of appeal of the Revenue. The AO purely made estimated addition without bringing any material against the assessee for estimating household expenses. The contention of the ld. counsel for the assessee that in other cases similar additions have been deleted, has not been rebutted through any material on record. In the absence of any material on record in favour of the revenue, we do not find any justification to interfere with the order of the ld. CIT(A). Same is confirmed and thus, the appeal of the Revenue is dismissed. Unexplained investment in plot at Sirole - Held that:- Since the AO has not brought any evidence on record that the assessee made payment of 1,30,00,000/- to the seller and no cogent and reliable corroborative evidence have been filed on record, we do not find any justification to interfere with the order of the ld. CIT(A). The finding of fact recorded by the ld. CIT(A) support the contention of the ld. counsel for the assessee that it is not a fit case for taking a contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that there is no such provision to make the addition. The assessee relied upon the decision of Hon'ble Suprme Court in the case of K.P. Varghese vs. ITO, 131 ITR 597 (SC). It was also explained that the assessee cannot be put to negative onus to cast on impossible burden. The ld. CIT(A), considering the explanation of the assessee, deleted the addition. His findings in para 4.2 of the appellate order are reproduced as under : 4.2 Appellant's submission along with assessment order have been considered carefully. Assessment records along with appraisal report and seized documents have also been perused. 'AO' has made the addition solely on the ground of value of property to be taken at ₹ 54,50,000/- on the basis of stamp duty in place of ₹ 25,08,000/- as declared by the appellant. Accordingly, addition for 50% share of the appellant on the difference of amount of ₹ 29,42,000/- has been made whereas another 50% has been added in the hands of appellant's wife namely Smt Poonam Gupta as per her assessment order. However, 'AO' has not brought even a single piece of evidence on record to show that the appellant has, indeed, paid this difference of amount. This is de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, addition is to be made on the basis of seized material and evidence, additions made on the basis of probabilities and presumption go beyond its scope. Accordingly, 'AO' is not found justified in making addition of ₹ 14,71,000/- to the income of the appellant without any adverse and contrary material on record found during search or assessment proceedings. Accordingly, addition of ₹ 14,71,000/- is, herby, deleted." 4. The ld. DR relied upon the order of the AO and submitted that the AO has not invoked the provisions of section 50C in the matter, which is evident from the finding of the ld. CIT(A). He has submitted that the ld. CIT(A) without any basis deleted the addition because findings of the AO were based upon the stamp duty applied by the Registrar for the purpose of registration of the sale deed. On the other hand, the ld. counsel for the assessee reiterated the submissions made before the authorities below. 5. On consideration of the rival submissions, we do not find any justification to interfere with the order of the ld. CIT(A). The crux of findings of the AO is that the addition is made by the AO merely on the basis of stamp valuation adopted by the Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the order of the AO. On the other hand, the ld. counsel for the assessee reiterated the submissions made before the authorities below and submitted that in the case of other family members and in the cases of other years of the present assessees, the ld. CIT(A) similarly deleted the addition and because of low tax effect, the department has not preferred appeals before the Tribunal. Some orders of the ld. CIT(A) in the cases of both the assessees are also filed on record. 8. On consideration of the rival submissions, we do not find any merit in this ground of appeal of the Revenue. The AO purely made estimated addition without bringing any material against the assessee for estimating household expenses. The contention of the ld. counsel for the assessee that in other cases similar additions have been deleted, has not been rebutted through any material on record. In the absence of any material on record in favour of the revenue, we do not find any justification to interfere with the order of the ld. CIT(A). Same is confirmed and thus, the appeal of the Revenue is dismissed. No other point is argued or pressed. In the result, the appeal of the Revenue in the case of Praveen Gup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act, which can be verified from the records of the Investigation Wing that immediately after the search, the seller was put to notice and his statement was recorded by the Investigation Wing, which is not referred to in the assessment order, in which the seller has confirmed that no price/payment over and above what is mentioned in the registered sale deed has been received by him. No action has been taken in the case of the seller. It was, therefore, explained that addition is made without any basis. It was also explained that property was put to auction by the State Government, who valued the same just for ₹ 27,00,000/-, which took place after three years of purchase by the assessee. The detailed evidences in this regard were also furnished. It was, therefore, submitted that when the value of auction after three years of the purchase was ₹ 27,00,000/-, it could not be ₹ 1,30,00,000/- three years prior to that. It was, therefore, submitted that the addition is made without any basis. The ld. CIT(A) considering the explanation of the assessee and the material on record, deleted the addition. His findings in para 4.2 of the appellate order are reproduced as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope for presumptions and probabilities. The AO has simply relied solely on the seized document without making any effort for further enquiry especially when it is not found to be in her hand writing and its contents have been denied by the appellant and the seller alike. It has been held by Hon'ble Gujrat High Court in case of Ushakant N. Patel vs. CIT (2006) 282 ITR 553 (Guj) that section 132(4A) (iii) does not necessarily raise a presumption qua the person searched or form whose possession the books are found, even if presumption available under section 132(4A) can be raised against the assessee. The prerequisite conditions of section 69 have to be satisfied and cannot be presumed to have been established on the basis of section 132(4A). Before provisions of section 69A can be applied, the appellant should be found to be owner of money, billion or jewellery found in her possession which are not recorded in her books of accounts. Section 69A is not found applicable in case of possession of loose slips/papers and not of any valuable articles or things. It is a settled position of law that the slips or loose sheets do not fall within the purview of book. An entry in books of acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 1,30,00,000/- to the seller. The ld. CIT(A) further noted that addition cannot be made merely on presumption and probabilities in the cases related to search. The ld. CIT(A) also found that contents of the document have been denied by the assessee as well as the seller of the property. Therefore, no liability can be fastened against the assessee for the purpose of making addition on the basis of few jottings without bringing any corroborative and trustworthy evidence on record. The finding of fact recorded by the ld. CIT(A) has not been rebutted through any evidence on record. The ld. counsel for the assessee also filed copy of the seized paper in question, on examination of which, we find that the ld. CIT(A) properly appreciated the contents of the seized paper for arriving at the just decision in the matter. Since the AO has not brought any evidence on record that the assessee made payment of ₹ 1,30,00,000/- to the seller and no cogent and reliable corroborative evidence have been filed on record, we do not find any justification to interfere with the order of the ld. CIT(A). The finding of fact recorded by the ld. CIT(A) support the contention of the ld. counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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